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CLARENCE BOWSER AND LILLIAN BOWSER v. PENN TOWNSHIP BOARD ADJUSTMENT (07/23/76)

decided: July 23, 1976.

CLARENCE BOWSER AND LILLIAN BOWSER, HIS WIFE
v.
PENN TOWNSHIP BOARD OF ADJUSTMENT, A/K/A PENN TOWNSHIP ZONING HEARING BOARD, APPELLANT



Appeal from the Order of the Court of Common Pleas of Butler County in case of Clarence Bowser and Lillian Bowser, his wife v. Penn Township Board of Adjustment, a/k/a Penn Township Zoning Hearing Board, No. 75-352.

COUNSEL

Lee A. Montgomery, with him Galbreath, Braham, Gregg, Kirkpatrick, Jaffe & Montgomery, for appellant.

John J. Morgan, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 25 Pa. Commw. Page 481]

This is an appeal from the order of the lower court reversing the Penn Township Board of Adjustment's denial of the issuance of a building permit to Clarence and Lillian Bowser.*fn1

[ 25 Pa. Commw. Page 482]

The Bowsers own a parcel of land in Penn Township, Butler County, located in a commercial zoning district, which is improved with a single-family residence. On December 3, 1974, the Bowsers applied for a building permit to erect an automobile service station upon the property, and attached a plan showing the proposed building to be adjacent to the dwelling. The building inspector refused to grant the permit and the Bowsers appealed to the Penn Township Board of Adjustment, which, after a hearing, denied the application. On appeal to the Court of Common Pleas of Butler County, the court reversed the Board of Adjustment and ordered that the permit be issued.

The Board of Adjustment denied the permit on the bases that (1) the proposed garage would constitute a second main structure on the Bowsers' lot, in violation of the zoning ordinance; (2) the Bowsers' lot was too small to accommodate both a residence and commercial garage, and there would be inadequate parking available; (3) the Bowsers' plans were incomplete as not showing the location of the septic system and drain field; and (4) that the Bowsers failed to establish a definite right-of-way to and from their property.

The lower court found that the reasons given by the Board for refusing the permit lacked merit in that the proposed garage was a permitted use in the zoning district, the ordinance lacked proper standards for passing upon applications, and the record showed that the Bowsers did have a right-of-way to their property.

Our scope of review where, as here, the lower court took no testimony, is limited to a determination of whether the Board committed an abuse of discretion or an error of law. West Whiteland Township v. Sun Oil Company, 12 Pa. Commonwealth Ct. 159, 316 A.2d

[ 25 Pa. Commw. Page 48392]

(1974). The lower court is bound by the same scope of review, and, although it found ...


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